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Samp v. United States

United States District Court, E.D. Michigan, Northern Division

July 30, 2019

ROBERT L. SAMP, Petitioner,


          THOMAS L. LUDINGTON, United States District Judge.

         On April 14, 2016, Petitioner Robert L. Samp was indicted on one count of willfully failing to prepare and file an income tax return (calendar year 2009 with taxable income of approximately $53, 595) and two counts of willfully evading taxes (calendar year 2010 with taxable income of approximately $278, 069; calendar year 2011 with taxable income of approximately $198, 155). ECF No. 1. On August 10, 2016, the Government issued a superseding indictment which charged Samp with the additional offense of possessing a firearm while being an unlawful user of a controlled substance, in violation of 18 U.S.C. §922(g)(3). ECF No. 20. On February 22, 2017, a second superseding indictment was issued that adjusted Samp's alleged total tax liability ($236, 569 for calendar year 2010 and $202, 102 for calendar year 2011). ECF No. 47.

         Before trial, Samp pleaded guilty to Count One, willful failure to file taxes for tax year 2009. ECF No. 80. On April 28, 2017, Samp was acquitted by a jury of the remaining three counts. ECF No. 63.

         On October 26, 2017, Samp was sentenced to 12 months incarceration and 12 months of supervised release. ECF No. 79. He was required to pay $178, 112 in restitution. Id. Samp has completed his term of incarceration, but is still on supervised release. He has filed a motion to vacate his sentence under 28 U.S.C. §2255. ECF No. 82. Magistrate Judge Morris recommended that Samp's motion be granted in part and denied in part. For the following reasons, Judge Morris's recommendation will be adopted in part and rejected in part.



         On March 30, 2017, Samp pleaded guilty to one count of willful failure to file his income tax return for tax year 2009. ECF No. 80. After the jury's verdict, a presentence report was prepared and circulated for review by the parties in June of 2017. Both parties made objections to the presentence report. The Government controverted three issues and Samp controverted two, including an objection “to the ‘tax loss' amounts…[because] no methodology of the computations is provided nor are the items of income, deductions, expenses, exemptions, or adjustments provided so no meaningful review can be accomplished. However, defendant believes that 2009 includes at least one $30, 000 non-income item as income and that 2010 includes at least one $10, 000 item which is also non-income.” Presentence Investigation Report, A-6. There was no dispute that the 2010 and 2011 tax years were relevant conduct for purposes of calculating the Sentencing Guidelines. See id. at A-6-A-7.

         On August 10, 2017, the Court held a telephonic status conference to discuss the contested issues identified in the presentence report and to determine if an evidentiary sentencing hearing would be necessary to address any factual questions including the tax loss. Following the discussion, the Court directed the Government and Samp to submit supplemental documentation addressing the issues, including the relevant tax loss.

         The Government filed a fifteen-page brief entitled “Government's Brief Regarding Samp's Criminal Tax-Loss Calculations And Other Guidelines Issues.” ECF No. 76. The Government's brief provided a detailed summary of Samp's gross income, his taxable income, the IRS's tax calculation, criminal penalties and interest owing, and an explanation of the application of the guideline ranges. The Government ultimately demonstrated that “Samp's criminal tax-loss total falls within the range of more than $250, 000 but not more than $550, 000, giving Samp a base offense level of 18.” Id. at PageID.872 (emphasis in original). The Government concluded that Samp's total unpaid tax equaled $18, 200 for 2009, $82, 974 for 2010, and $76, 938 for 2011. Id. at PageID.875. This equaled $179, 122 in total.

         Petitioner's attorney filed a four page “Supplemental Response to the Pre-Sentence Report.” ECF No. 75. He explained that “for purposes of computing tax loss for purposes of sentencing, the defendant was generally in agreement with the business-driven deposit analysis.” Id. at PageID.838. Otherwise he only objected to the inclusion of penalties and interests in determining the tax loss for the Sentencing Guidelines.

         Prior to the sentencing hearing, Samp represented that he had submitted amended returns to the IRS for years 2009, 2010, and 2011. However, as of the time of the hearing, receipt by the IRS was unconfirmed.

MS. PARKER: Well, one thing I would like to add is that Mr. Davis has indicated to the Court and to the Government that 2009 tax return was filed by the defendant. However, that has not been received by the IRS as of 15 minutes ago.
THE COURT: Could you be any more current than 15 minutes?
MS. PARKER: I had to walk over here, Judge, so I couldn't push it much closer. It might be a half hour, but seriously we checked extremely -- THE COURT: Well, we appreciate the accuracy.
MS. PARKER: -- just before we came over here.

ECF No. 81 at PageID.922-923.

         Samp's sentencing hearing was conducted on October 26, 2017. ECF No. 78. Samp's offense level guideline was determined to be 18 based in part on a tax loss of $314, 354 which exceeded $250, 000 but was less than $550, 000. His guidelines were determined to be 21 months to 27 months. However, the statutory maximum for the offense of conviction was 12 months. He was sentenced to 12 months incarceration, 12 months supervised release, and $178, 112 in restitution to the United States. ECF No. 79. During the hearing, the Court accepted the Government's unchallenged calculations but excluded interest and penalties when determining Samp's restitution.

Restitution will be ordered in the amount of $179, 122. That is the amount, total amount, of the unpaid tax composed of $18, 200 in 2009, $82, 974 in 2010, and $76, 938 in 2011. And those figures are…from the Government's filing…where the amount of the tax obligation is…outlined.

ECF No. 81 at PageID.942.

         Samp did not ...

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